Abstract:

Abstract: The Hong Kong Bill of Rights Ordinance (BORO) guarantees many
fundamental rights to Hong Kong's permanent residents. In these constitutionally
significant statutes, two types of rights exist: 1) textually qualified rights, which contain
qualifying language indicating for what purposes a legislated restriction is permissible,
such as when necessary for national security, public order, public health or morals, and 2)
textually absolute rights, which contain no language indicating when a legislated
restriction on that right is permissible. In Leung Kwok Hung & Others v. HKSAR, the
Hong Kong Court of Final Appeal formulated a rationality requirement for when
restrictions are constitutionally valid. The Court held that the rationality requirement is
derived from the word "necessary" in qualifying language in the BORO Article
considered by the Court. First, this comment argues that subsequent courts have
misapplied Leung Kwok Hung's formulation of the rationality requirement when
considering textually absolute BORO rights that do not contain the word "necessary."
Second, this comment analyzes two possible approaches to correcting this misapplication
by constitutionally authorizing the rationality requirement for textually absolute rights in
a manner not reliant on the word "necessary." This comment ultimately argues that the
second approach, implying the rationality requirement into the BORO, should be
followed.